Cameron Todd Willingham was a family man. He loved his wife and his children and he worked hard. When his Texas home caught fire one night, neighbors reported seeing him frantically running in and out of the house trying to save his family. He was heard shouting “my babies are in there, my babies!”, and was scorched running in and out of the flaming house. Unfortunately, the heat overcame him and he was not able to save his children and they died in the fire.

Investigators found evidence of what was then known as “spidering” on the glass in the house, a web-like cracking of glass that is often associated with the use of an accelerant, like gasoline. Police noted some inconsistencies in Willingham’s account of the incident and apparently gave little weight to the hysteria of the moments that led to Willingham’s confused statements. Prosecutors charged Willingham with arson and murder and he was convicted by a jury. Throughout the entire proceeding he maintained his innocence and insisted he had nothing to do with the fire that killed his family. Based on this conviction, Willingham was sentenced to death row in Texas.

When the Innocence Project got involved they brought in nationally renowned arson experts from around the country who disputed the findings of the original “expert” who testified at trial. The most astonishing finding of the outside experts was that the so-called “spidering” effect is often caused by the application of cold water to hot glass which, of course, is exactly what happens when fire trucks arrive at a house fire and attempt to douse it with water. The consensus among the experts was that there was “no scientific foundation” for a finding of arson. This conclusion essentially refuted the only significant evidence against Willingham and left experts to conclude that Willingham was factually innocent.

Unfortunately, this finding did not help Cameron Todd Willingham because it came *after* the State of Texas executed him for a crime he did not commit. Willingham continued to insist that he was innocent up to the day that he died, announcing at his execution that “Today the State of Texas is executing an innocent man”.

When you hear about executions like the ugly and failed attempt in Oklahoma last week, keep in mind that the mistakes we make are not just in the methods we use to kill prisoners, but sometimes in the very process we use to determine their guilt. And whether you know it or not, the fact is, innocent people ARE convicted more often than you think and, in some cases, put to death, for crimes they did not commit. Think about that for a minute and about all the cases the Innocence Project has not been able to investigate.

Read more about the facts and the mythology of the Cameron Todd Willingham case here.

Despite heroic efforts to find the holy grail of TRUTH, science has never effectively found a way to detect deception. There are of course polygraphs and it’s well known that they are inadmissible in court virtually everywhere as substantive evidence of deception. There’s a reason for this, and it is well documented at sites like www.polygraph.com, where the “junk science” behind these machines is exposed and effectively debunked. Why, then, does the FBI still routinely use them to interview suspects and employees, and why do so many law enforcement agencies use them during investigations? Simple. They provide a convenient cover for what is really an interrogation. The FBI will tell a suspect that they plan to administer a polygraph to “clear the suspect” and, instead of the typical 3-5 question session, they go on for six to eight hours with questions that far exceed the scope of any standard polygraph, and are really just used to justify further questioning (“the machine says you’re lying, and machines don’t lie”).

But the search for truth continues and scientists continue to explore the concept of a reliable method of detecting deception. One recent development is the notion of capturing “micro-expressions”. The idea here is that our initial reactions to news or questions, causes involuntary physical reactions that we cannot consciously mask, even if they only last micro-seconds. If we can capture these initial slices of human behavior, so the theory goes, perhaps we can find some uniform reactions that reliably reflect deception. It sounds like a real stretch to me, and at the end of the day someone is still going to have to make some kind of subjective judgment call as to what physical reactions reflect deception, but it does seem like something that could be empirically tested, so the application of a rigid scientific methodology in validating this hypothesis is welcomed.

Those words were spoken by US Supreme Court Justice Elena Kagan (former dean of Harvard Law School) during oral arguments on a case currently before the Court that will answer the question whether police officers need a search warrant to search a cellphone carried by an arrested person. The case is Riley v. California and it’s an attempt by government to broaden the scope of searches without the need for a warrant. There is an exception to the warrant requirement that allows officers to search a person “incident to arrest”, and it makes sense in order to protect officer safety (looking for guns or weapons) or to preserve evidence that could be easily disposed of otherwise (e.g., drugs). But a cellphone? It doesn’t seem to present any threat to officers and what danger is there that evidence exists on the phone, which cannot be obtained after the phone is seized and a search warrant obtained? This seems like a no-brainer to me.

But the government continues to peel away every last vestige of privacy that we have in order to maintain control and this is just the latest example. Even Justice Scalia, the ranking Conservative on the bench, stated “If police should arrest someone for driving without a seatbelt, it seems absurd that they should be able to search that person’s iPhone”.

Cell phones play a uniquely powerful role in modern criminal prosecutions. Prosecutors have learned that they are basically radios constantly transmitting information to local cell towers. In a murder case I tried, the government issued search warrants for every cell tower near the shooting and was able to get records of every phone that was in the vicinity. By doing this, they were able not only to place my client’s phone at the scene, they were able to demonstrate to the jury that the phone was constantly in use texting someone else except for a 7 minute period during which the shooting occurred. Powerful evidence? It would have been, except that the defense cell phone expert testified that the government manipulated the evidence to show the two time periods coinciding when in fact they did not overlap. The State Patrol officer who altered the charts presented to the jury at the prosecutor’s request admitted this during cross examination, and held her head down in shame.

The point is, cell phones play a unique role in our lives not only because of the data on them – which, as Justic Kagan points out, is comprehensively biographical – but also because of their ability to present a complete picture of our travel, our conversations, our stop and go’s. The Framers of our Constitution could not have envisions cell phones and their ubiquity, and the best they could do for future generations was prohibit “unreasonable searches” of our “persons, papers and effects”.

How would feel knowing that police are now capable of using the same technology used in airports to scan human bodies for weapons, ON THE STREET? The New York City Police Department has always had a big challenge on its hands dealing with guns and is now turning its attention to a system that can achieve this kind of walking gun scanning, right from a police car. You heard that right: police cars can scan people on the street for guns on their body. Their purported intent of course is to scan crowds for danger, a laudable goal that many would support in the abstract. But this particular implementation raises significant questions about the balance between security and privacy and how far we are willing to go to let one yield to the other. Not to mention the health concerns that prompt people to opt out of this type of thing in airports (this author included).

NYPD is saying that this kind of system “would only be used in ‘suspicious’ situations”, putting aside pesky questions about who decides what is “suspicious” and the natural tendency for anyone with a hammer to see the world as a bunch of nails. Let’s face it, we are living in a post-privacy world and that’s not news. What is news is that we appear to be sitting back and just letting it all happen without stopping to think of how far it will go, unregulated. Public DNA scanners seem inevitable, systems that track patterns of movement and purchases are already in place, and in the hands of a tyrannical government, there’s nothing they can’t know or see. Are you Ok with this?

Interesting questions arise in the criminal defense context. Is this a warrantless search? Are “suspicious circumstances” equivalent to the “probable cause” that our Constitutional Framers articulated to throttle the government’s intrusions, having no idea of how far those capabilities would advance in the future? What does it mean to be a “Textualist” or “Originalist” interpreter of the Constitution when there is no possibility that the Framers could envision this type of governmental intrusion? These are questions that will be answered as arrests take place and searches are litigated. Until then, make sure to wear underwear when you’re out.

We’ve reported on this before, but its use is intensifying. What the government can’t do via a national police force, it can do by funding local police agencies across the country. The Department of Homeland Security is providing funding to local police agencies for all kinds of technology aids in tracking “suspicious persons”. Seattle now joins the growing list of police agencies across the country using facial recognition software to scan local surveillance cameras looking for … who knows what. Ostensibly they are using the scans to look for suspects in criminal activity, but this type of dragnet is pretty broad. The scans are made against national databases maintained by the government and based on photos taken from driver’s license and passport photos across the nation. How these are being used to track crime isn’t exactly clear.

When police complain that they are under-funded and under-staffed, it’s hard to reconcile that with arrests I’ve seen where 9 police officers come out of a closet in a hotel room to make one prostitution bust. I’ve seen this kind of emphasis on “Vice” activity regularly, but I never get an answer as to why it’s a priority. But isn’t it obvious? The laughter and the smirks on officer’s faces when they confront an arrested prostitution patron tell the whole story, it’s just another form of amusement and titillation that beats the heck out of walking the beat or working a crime scene. And now the government is using your tax dollars ($1.6 million in Seattle’s case) to give officers more things to look at instead of criminals on the street.

The privacy concerns are real and they are frightening in their own right. But the outright waste of money and resources that are being gobbled up just because they are there is outrageous. I’ve yet to hear a cogent argument explaining the value of running hours and hours of random surveillance scans through public databases on the off chance that something, somehow criminal *might* be happening.

It’s axiomatic that what constituted an “unreasonable search” in 1789 is difficult to translate to 2013. And the US Supreme Court’s “reasonable expectation of privacy” rubric doesn’t help much because “reasonable expectations” naturally evolve with the technology landscape. But the implications of this anachronistic approach are staggering and little is being done to address the problem. What is at stake is one of the most cherished protections enshrined in the Bill of Rights, a document that literally was required in order to adopt our Constitution. From the beginning, Americans have expected to be free from “unreasonable searches” by the government as a fundamental part of their package of individual rights. And we are losing that protection as technology advances faster than our legal system can react.

The legal system simply isn’t capable of keeping up with the pace of technological erosion of privacy. The only way these issues can be resolved jurisprudentially is via the following process:

1) A new technology is invented and police quickly adopt it for use in a criminal investigation;

2) A suspect is convicted at trial and preserves their objection to use of the technology;

3) The long series of appellate courts refuse to grant the defendant relief;

4) The matter makes it way to the United States Supreme Court by petition for a writ of Certiorari (“Cert”).

5) Four members of the Court agree that it’s an issue worth hearing and they grant Cert.

6) The Court hears arguments and issues a ruling.

This process can take decades. Meanwhile, of course, police continue to use the technology to the point where the very definition of “reasonable expectation of privacy” changes to reflect that people no longer expect privacy where they once did. The result: an ongoing, uni-directional erosion of privacy with no end in sight.

The following article published by Eleanor Birrell at Harvard suggests some solutions with teeth. Don’t hold your breath.

The defense will be resting this week (Wed or Thu) and I expect a verdict will be returned shortly after the jury gets the case, probably by end of day Friday. We are out of session today and resuming tomorrow. Until the verdict is in, you know where my thoughts will be. Thanks.

Just a quick note to let folks know that I’ve started a 4 week murder trial that will occupy every moment of my spare time between now and the verdict. Until then, thanks for reading and I’ll see you on other side.

DNA is easily the most valuable scientific tool available to help determine the truth in the courtroom. The accuracy of DNA profiling to determine personal identification and individualization is unmatched and can help both the prosecution and the defense when used properly. The problem is that it is NOT always used properly and when this happens the results carry so much weight in the minds of jurors, it can lead to disastrous results. Both sides in any litigation need to be aware of the potential for “slanting” of results. Government DNA analysts are by definition intelligent people who understand who pays their paychecks, and it’s no secret what outcome is desired when they are asked by police to perform an analysis.

Real scientists encourage the use of “blind” testing, where the desired results are not revealed, in an attempt to minimize the tendency of the tester to favor one outcome over another. This is standard scientific method and there is no good reason to avoid the practice if one really wants the truth. But police are not in the business of trying to discover the truth. They are in the business of trying to secure convictions from suspects and it has become routine procedure in criminal cases for the government’s DNA analysts to be told in advance what the case is about and what police are trying to prove. This kind of advance telegraphing of the desired result is not likely to be forgotten by the tester and any judgment calls that could be made during testing are inevitably going to result in slanting the evidence against the suspect.

Defense lawyers need to review government DNA reports carefully and look for evidence of this actual bias. In extreme cases it may even lead to suppression of the evidence or worse, prosecution or disbarment of lawyers who deliberately manipulate the results in their effort to prevail in court. Any defense lawyer who assumes that government “scientists” are as objective as independent research scientists is fooling themselves. Don’t assume, expect bias and challenge it with your own expert’s review of the process.

Social media is making life a lot easier for cops and prosecutors to prove intent. An 18 year old California man was originally charged with vehicular manslaughter after “accidentally” killing a 58 year old cyclist in Dublin, California. When an ordinary vehicular accident results in a death, prosecutors can bring charges of manslaughter, a lesser form of homicide that is generally based on negligent or reckless behavior, without an intent to kill, or “malice”. A specific intent to kill, or “malice aforethought” is a generally required element of murder. When, however, there is evidence of the kind of reckless behavior that anyone should realize is likely to result in death, malice can be implied and murder charged.

Imagine, for example, a man points a gun into a movie theater and fires indiscriminately, killing someone. He later claims “Hey, I didn’t intend to kill her, I didn’t even know she was there”. That kind of behavior is obviously so full of general ill will that the element of malice needed for a murder charge can be presumed just by virtue of the behavior.

In this case, prosecutors had the idea to check the young man’s twitter account and found several tweets before the incident bragging about how fast he had been speeding through the area and making statements like “Live Fast, Die Young”. This was enough evidence of intent to cause prosecutors to upgrade his charges to murder.

Remember, anything you post anywhere on the Internet is permanent, forever, and likely to be retrievable by someone somewhere for whatever purpose suit them. If you’re not comfortable having it broadcast to the world, for crying out loud, don’t post it or tweet it.

Defensology is aimed at general audiences interested in issues affecting the use of technology in criminal investigations and prosecutions. The perspective of the author is that of a criminal defense lawyer, without apology.

Defensology is maintained by Robert Perez, a criminal defense lawyer based in the Seattle area of Washington State. Robert is proud to defend liberty and freedom and restrict the ever growing reach of an intrusive government. Fight the Power.